Monthly Archives: August 2011

In Part I of my series about alimony in Colorado (which you can read here), I discussed how alimony (officially called “maintenance”) is awarded as part of temporary orders while a divorce is pending. Specifically, that post dealt with the formula that is presumptively applied when the parties earn a combined annual income of $75,000 or less. In this post, I will continue with the discussion of temporary maintenance (that is, maintenance awarded before the divorce is final) for situations in which the spouses together earn more than $75,000 per year.

When the husband and wife’s combined annual income is greater than $75,000 per year, there is no presumptive formula or guideline for the court to apply. As such, the amount to be awarded is determined on a case-by-case basis. Each case is different, and different judges will calculate temporary alimony differently.

Step 1. Is a spouse eligible for temporary maintenance? The first thing that the court must determine is whether the spouse seeking alimony is eligible to receive it. The court must find that the seeking spouse:

(a) Lacks sufficient property, including marital property apportioned to him or her, to provide for his or her reasonable needs; and
(b) Is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

“Reasonable needs” and “appropriate employment” are considered in light of the expectations that the spouses have developed during the marriage. “Reasonable needs” means more than bare essentials, but considers the spouses’ lifestyle during the marriage. “Appropriate employments” means employment suited to the individual. Not just any job, but a job suited to the person.

Step Two. Determining the Amount of Temporary Maintenance.Once the court determines that a spouse lacks sufficient property to support himself or herself, and that he or she is unable to support himself or herself by suitable employment, the court will go on to determine how much support should be paid to the other spouse. This calculation is very subjective. The court will consider “all relevant factors,” including six factors listed in the statute:

(a) The financial resources of the party seeking maintenance, including marital property apportioned to such party, and the party’s ability to meet his or her needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;

(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and that party’s future earning capacity;

(c) The standard of living established during the marriage;

(d) The duration of the marriage;

(e) The age and the physical and emotional condition of the spouse seeking maintenance; and

(f) The ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance.

As you can see, these factors are broadly defined, and judges have wide discretion to determine the amount of temporary alimony. Therefore, it is important that you and your lawyer review all financial documents carefully and fully prepare for the temporary orders hearing.

This article is intended to serve as a very brief overview of the temporary alimony process. You should consult with an attorney to find out how the law will apply to the facts of your case. Call the Law Office of Kirk Garner today for your free thirty-minute consultation.

[The following article was originally published on July 22, 2011, and was the most viewed post that month.]

It can be a scary and intimidating experience to testify in court. Most people don’t have to testify in court very often. It is okay to be nervous. Most people are nervous when they testify.

To some extent, testifying in court is uncomfortable because it is unnatural: Witnesses can’t just come into the courtroom, talk directly to the judge or jury, and say whatever they want. Rather, they have to answer questions posed by a lawyer, while the judge and jury listen to the exchange.

If you are being called as a witness it is either because you are a party in the case or one of the attorneys believes you have important information that the judge or jury needs to consider in making a decision. Whenever I am preparing a witness to testify, I give them the following instructions:

1. Tell the truth, the whole truth, and nothing but the truth. It is very important that you tell the truth, to the best of your ability.

2. Listen to the Question. Make sure you understand the question. If you don’t understand the question, or if the question is vague, ask for clarification. Without being difficult, you may ask, “If you’re asking my ‘X,’ then my answer is ‘Y.’”

3. Answer the Question. Don’t answer the question you wish the lawyer had asked you, answer the question that was asked. Answer only the question asked, without adding information or making commentary.

4. If the question calls for a ‘yes’ or ‘no’ answer, then answer ‘yes’ or ‘no.’

5. On the rare occasion when you can’t answer ‘yes’ or ‘no’ then say so.

6. Even when you are asked a ‘yes’ or ‘no’ question, it may be more clear for you to answer, ‘that is correct’ or ‘that is not correct.’ Lawyers don’t always frame questions precisely. For example, if you are asked, “You did not go to work on Monday, isn’t that true?” You answer, “No.” Are you testifying, “No, I did not go to work,” or is it, “No, it is not true that I did not go to work?” If you answer, “That is correct,” then everybody will understand what you mean.

7. Don’t argue. The lawyer asking you questions may be rude or insulting. She may insinuate things that upset you. Nevertheless, do not become argumentative. This is not your turn to ask questions. This is not time to have a conversation with the lawyer or anybody else.

8. Don’t get smart. When you are on the witness stand, it is not time to crack jokes or be witty. This is not the time to hurl insult or make snide comments. The judge or jury is watching your demeanor and body language, and they will judge your credibility–whether they think you are telling the truth. It is common in trials for two witnesses to give conflicting testimony: the judge or jury must decide whom to believe. If you make inappropriate comments, your testimony may be disregarded.

9. Don’t cop an attitude when the other lawyer is asking questions. Give your spouse’s attorney (or the other side’s attorney) the same respect that you showed when your own attorney was asking questions.

10. Don’t get defensive. Don’t assume the questioner is trying to trap you. Don’t infer a bad motive. The lawyer asking you questions may or may not be trying to imply something by the manner of the questions being asked. Your job is not to be defensive, it is to answer the question.

11. Don’t look for clues or an answer from the lawyer or the audience. Only one witness may testify at a time. When you are on the witness stand, you are the only person who may answer the question. Don’t look to your spouse or anyone in the audience to help you remember something.

12. If you don’t remember, say so. ‘I don’t recall’ is always the right answer if you genuinely don’t recall. If you claim you don’t recall something you should be able to remember, it may appear you are lying.

13. Don’t speculate or guess. Again, if you don’t remember, don’t try to recreate your memory. Don’t be talked into a false memory. If you didn’t see something or didn’t hear it, if you could have personal knowledge of something, then say so.

14. Your own lawyer (or in most cases the lawyer who called you to testify if you are not one of the parties) generally must ask you open-ended questions: Who? What? Why? When? How? The fact that the question is open-ended does not give you the right to go on and on with your testimony. Give a concise answer if possible. It is easier for the lawyer to ask another question if she wants more information than it is for her to stop you when you are giving too much information. Just make sure your answer is not misleading.

15. The other side’s lawyer, or the lawyer who did not call you to testify if you are not a party, may generally ask close-ended questions that call for a ‘yes’ or ‘no’ answer. This is called ‘leading the witness’ because the lawyer is stating the facts and merely asking the witness to affirm or deny those facts. “Isn’t it true that ‘X’?” “It was cloudy that day, wasn’t it?” You may feel that your ‘yes’ or ‘no’ answer is misleading. You may feel the need to explain yourself. This is not the time to do that. If you try to explain your answers, the lawyer asking questions may object and ask that you be directed to simply answer the question. If your attorney feels it would be helpful for you to explain your answers, he may ask you when it is his time to do so. Until then, answer the question you have been asked.

16. During your testimony, a lawyer might object. Something like, “Objection Your Honor, calls for speculation.” When a lawyer makes an objection, stop talking. Do not answer the question until you are told to do so. Generally speaking, if the judge sustains the objection, you will not be allowed to answer the question. If the judge overrules the objection, you will be allowed to answer. In any case, the best thing you can do is sit quietly until you are told to answer the question or the lawyer asks you another question.

17. Sometimes the judge will address you directly. She may ask you are question or give you an instruction. Listen carefully to what the judge is saying and answer the question or follow the instruction. Judges can get quite upset when witnesses refuse to follow their instructions. The judge has the power to hold you in contempt, so it is never wise to make the judge angry.

18. Don’t ask the judge if you have to answer the question. You should assume you have to answer the question unless someone says you don’t have to answer the question. There is an important exception to this rule: You do not have to answer a question that would tend to incriminate you. If you are being asked about something and your answer could be used to convict you of a crime, you may invoke your right against self-incrimination. If you are not being asked about something that could incriminate you, you will have to answer, even if the answer is embarrassing or personal.

19. Don’t talk over the lawyer asking you questions or anybody else. Wait for the lawyer to completely finish the question before you answer. Your testimony is most likely being recorded by a court reporter or a tape recorder. It is very difficult for a court reporter to accurately record what everyone is saying when more than one person is talking at a time.

20. Answer with words. That is, do not nod or shake your head: the tape recorder cannot hear your answer. Do not answer with ‘uh-huh’ or ‘nuh-uh,’ because it is very difficult to tell the difference between those two answer when your testimony is written down.

Following these guidelines will help you to effectively testify in court.

It is more likely for your divorce to be uncontested when you know your rights.

When a prospective client calls to discuss a divorce, one of the first questions I ask is whether the case is contested or uncontested. This is especially true when people want to know how much I charge for divorce. Uncontested divorces are much cheaper because there are no issues to be decided by a judge or mediator. Most people hope their divorce will be uncontested, but in reality there are very few truly uncontested divorces.

The Uncontested Divorce. An uncontested divorce is one in which both spouses want the divorce. They have discussed the issues: how the property and debts will be divided, whether maintenance will be paid and how much, where the children will live, how much child support will be paid, how much parenting time the non-custodial parent will have with the children. Whatever the issues the soon-to-be ex-spouses face, they have discussed them and have reached an agreement. It is very helpful for the agreement to be in writing, to prevent miscommunication and misunderstanding. Uncontested divorces are rare because if the spouses could communicate and reach consensus, the chances are they wouldn’t be getting a divorce.

The Contested Divorce. By contrast, a contested divorce is one in which there is not an agreement on every issue in the divorce. There are varying degrees of contested divorce. Couples may be able to agree who will get the house, but they can’t agree where the children will reside. Sometimes the opposite is true. In some cases, the parties cannot agree to anything.

Assume the Case is Contested Until It is Not. Unless I know the spouses have an agreement, it is safest for me to assume that the case will be contested. I will take measures to safeguard my clients rights and property until an agreement is assured. I will prepare to present my clients case in court. By preparing for trial, you actually make it more likely that you can reach an agreement in court. When you fail to prepare for trial, you weaken you bargaining position and risk an unfavorable result.

Know Your Rights. When discussing the subject of divorce with your spouse, it is important to know your legal rights. You need to know what you are entitled to so that you can make a fair bargain. Take advantage of my free thirty-minute consultations for divorce; learn what your rights are; learn what to expect of the process. Then you can negotiate with your spouse with confidence and you will be more likely to reach an agreement that is in your best interest. Call me today.

Temporary spousal maintenance is designed to equalize the finances until the divorce is final.

Alimony is a payment of money from one spouse to another for the purpose of financial support or equalization of incomes. In Colorado, alimony is technically called “spousal maintenance.” There are two kinds of spousal maintenance: temporary and permanent. Temporary maintenance is the payment of money from one spouse to the other before the marriage has been dissolved (i.e., before the divorce is final). Permanent maintenance–what most people think of when they hear the term “alimony”–is the payment of money from one former spouse to the other after divorce.

In this article, I will discuss temporary maintenance when the spouses earn a combined annual income of $75,000 or less. In future articles, I will discuss 1) temporary maintenance when combined annual income exceeds $75,000; 2) permanent maintenance; and 3) other aspect of alimony, including modification, termination, and tax treatment.

Historically, the calculation of alimony has been very subjective. Based upon the same facts and income, different judges will regularly calculate and award different amounts of alimony. This creates a lack of certainty and predictability in the courts, and makes it hard for divorcing couples to plan for the future. To make the award of temporary maintenance more uniform, the Colorado legislature developed a guideline for couples whose combined annual income does not exceed $75,000. In these situation, it is a rebuttable presumption that for temporary maintenance (again, alimony paid before the divorce is final), the spouse with the higher income should pay an amount equal to forty percent of his or her income, minus fifty percent of the earnings of the spouse with the lower income.

Example #1. Let’s say that Bob earns an average of $4,000 per month, and Emily earns $2,000 per month. Forty percent of Bob’s income is $1,600, minus fifty percent of Emily’s income, which is $1,000, equal $600. Until the divorce is final, it is presumed that Bob should pay to Emily $600 per month.

Note first of all that this does not entirely equalize the spouses’ income: Bob is left with $3,400 per month, and Emily has $2,600. Secondly, while this formula adjusts income, it does not affect the payment of debts and expenses: the judge will still have to apportion which spouse will pay which monthly expenses. In many cases, the amount of expenses a party has to pay has a greater affect on their discretionary income than the amount of temporary maintenance they have to pay, or that they receive.

It is important to keep in mind that this temporary maintenance formula (for combined income which does not exceed $75,000) creates a rebuttable presumption in favor of the calculated amount. That means that either party may seek a different amount of temporary alimony if they can show that the formula is somehow unfair. If you are able to persuade the Court, then the amount of temporary maintenance may be either higher or lower than the result of the formula.

In the next article, I will discuss how the courts calculate temporary maintenance when the parties have a combined annual income of more than $75,000. In future articles, I will discuss permanent maintenance and other aspects of Colorado’s alimony laws.

As you can see from this article, the law of alimony in Colorado is complicated and subjective. Contact the Law Office of Kirk Garner today to discuss whether you could be entitled to alimony; or find out how much you might have to pay your spouse.

Follow My Blog

It is that time of year again: teachers are decorating their classrooms, parents are shopping for school supplies, and students are enjoying the last few days of summer vacation. The new school year is about to start. What are you going to do to make this a great year? Back-to-school season is even more stressful…

The Law Office of Kirk Garner provides experienced legal guidance and representation in the areas of general practice and general civil litigation, personal injury, and family law. Located in Colorado Springs and serving clients throughout Colorado including El Paso, Teller, Fremont, Custer, Pueblo, Elbert, Lincoln, Crowley, and Douglas counties.